Breaking Cycles of Violence: Gaps in Prevention of and Response to Electoral-Related Sexual Violence in Kenya

This report was jointly produced by Physicians for Human Rights, the Office of the United Nations High Commissioner for Human Rights, and UN Women.

I. Introduction

‘I was targeted because my husband is from a different community that was perceived to hold a differing political opinion from the one of the dominant community we live in.’

Survivor of sexual violence during the 2017 elections interviewed in this research

Electoral-related sexual violence (ERSV) is a form of sexual violence, including rape, gang rape, sexual assault and defilement [1], associated with electoral processes and/or intended to influence or achieve a political end within an electoral process. In Kenya, sexual violence has been a recurrent feature of elections, which have been marred by deadly violence, unrest and serious human rights violations and abuses. Outbreaks of sexual violence during elections have been documented since the 1990s.[2] Following the post-election violence in 2007/2008, the Commission of Inquiry into the Post-Election Violence (CIPEV), known as the ‘Waki Commission’, documented 900 cases of sexual violence perpetrated by security agents, militia groups and civilians against both men, boys, women and girls in a context of large scale violence, mass displacement and more than 1,000 deaths.[3]

CIPEV provided critical recommendations for reform and was followed by the historic adoption in 2010 of a progressive Constitution with a robust Bill of Rights. Since 2010, an impressive set of laws, policies and standard operating procedures have been developed on prevention and response to sexual violence. Yet, during the general elections held in August and October 2017, within a context of localised violence, large numbers of cases of sexual violence perpetrated by persons in uniform and civilians were again documented. According to the Kenya National Commission on Human Rights (KNCHR), at least 201 Kenyans – most of them women and girls — were subjected to rape and other forms of sexual violence; [4] however the actual figure is likely higher due to under-reporting and the fact that KNCHR documented these in 11 of the 47 counties.

KNCHR,
which documented sexual violence during the 2007/08 post-election violence and
noted similar patterns in 2017, has characterised ERSV as a premeditated act
‘used as a weapon for electoral-related conflict’.[5] As
documented by CIPEV, the Truth Justice and Reconciliation Commission and KNCHR,
in Kenya, ERSV has been committed by non-state and state actors, and has
targeted political aspirants, their supporters and families, and other
civilians, particularly targeting ‘select’ communities owing to their
geographical or physical locality and their ethnic origins, which are then
directly linked to their perceived political leanings. [6]
ERSV is an effort to punish, terrorise or dehumanise communities and
individuals, and to influence voting conduct and the outcomes of elections,
including by displacing people so that they do not vote. Across different
regions and localities in Kenya, common ERSV trends documented in 2007/08 and
in 2017 include targeted rape of women and girls following political unrest
which forced men to flee, and targeted rape of men and boys. ERSV has also been
opportunistic, fueled by a breakdown of law and order and unrest.[7] Ahead
of the 2017 elections, there were mass pre-emptive movements of people from
their villages due to their fear of being subjected to violence.

Sexual violence is a violation of human
rights and fundamental freedoms, and in itself constitutes discrimination.[8]
Survivors may suffer the long-term consequences of physical injuries, including
fistula and severe vaginal and rectal injuries; sexually transmitted diseases,
including HIV/AIDs; unwanted pregnancies; stigma and rejection by family
members; psychological trauma, including anxiety and post-traumatic stress
disorder; and loss of livelihoods and educational opportunities.

Understanding the
particular characteristics of ERSV is important to aid the proper
identification of ERSV and monitoring of trends and patterns, hence bolstering
measures for prevention and response in future election periods. In addition to the profound consequences of sexual
violence, survivors of ERSV have had to contend with immense barriers in
reporting violations, accessing protection and pursuing justice.

Rationale for the gap analysis study

While Kenya has strengthened its institutional and legislative frameworks, these did not lead to strengthened prevention of and more effective responses to ERSV during the last elections in 2017. It is against this backdrop that the Office of the United Nations High Commissioner for Human Rights (OHCHR), United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) and Physicians for Human Rights (PHR) jointly conducted a comprehensive gap analysis study to review the institutional weaknesses that undermine effective prevention of and response to ERSV in Kenya. Building on KNCHR’s findings on the scale and patterns of sexual violence observed during the 2017 elections, the objective was to build a body of evidence to identify gaps, document good practices and support the formulation of survivor-centred short- and medium-term measures that should be prioritised by duty bearers, especially in the health, security and legal sectors, for effective prevention and response ahead of the next elections in 2022.

This study recognises that Kenya has a high
incidence of sexual violence outside election periods. According to the Kenya
Demographic Health Survey (2014), sexual violence during non-election years is prevalent in
both private and public spheres, with 45%
of women and 44% of men aged between 15 and 49 years having experienced sexual and
gender-based violence.[9] For this reason, many of the recommendations formulated
in this study apply more generally and can serve to strengthen state
interventions in election and non-election situations.

Methodology of the study

The
study was conceptualised as a human rights-based assessment of gaps and
challenges in the prevention and response to ERSV during the 2017 electoral
period. The study was conducted by a
multi-disciplinary team of six researchers, including gender specialists, a
social scientist, and legal and human rights practitioners with expertise in
sexual and gender-based violence, access to justice and reparations. Field
research was carried out in Nairobi, Kisumu, Bungoma and Vihiga counties, where
85% of ERSV cases documented by KNCHR in 2017 were recorded.

The research employed quantitative and qualitative methodologies.[10] Quantitative data was obtained through a retrospective review of records of Post-Rape Care (PRC) forms and registers at five public and private health facilities within the four counties – Nairobi Women’s Hospital – Gender Recovery Centre, Jaramogi Oginga Odinga Referral and Teaching Hospital, Makadara Health Centre (private), Mama Lucy Kibaki Hospital and Vihiga County Referral Hospital – within a three-week period in February 2019. The PRC records reviewed covered the immediate pre-election period [1 July to 6 August 2017], election period [7 August to 31 October 2017], and post-election period [1 November to 31 December 2017], to analyse trends in reporting and responses.

A total of 200 participants from the
community, public service, law enforcement, health, forensics, justice,
development partners, civil society organisations and ERSV survivors were
involved in the qualitative study through extensive key informant interviews
and 10 focus group discussions. Two workshops were conducted with stakeholders
in April and June 2019 to validate the findings and recommendations of the
study.

The
study benefited from collaboration with a wide range of Government partners,
notably the State Department of Gender Affairs under the Ministry of Public
Service, Youth and Gender Affairs, the National Police Service (NPS),
constitutional and legislative oversight bodies such as KNCHR, the Independent
Policing Oversight Authority (IPOA) and the National Gender and Equality
Commission (NGEC). It also relied upon the testimonies, insights and guidance
from survivors’ networks and women’s rights organisations, notably Grace Agenda
and Wangu Kanja Foundation. OHCHR, UN Women and PHR are particularly grateful to the 53 survivors of ERSV
during the 2017 and 2007 elections, 44 police officers and 95 Government
officials from a wide range of institutions that took part in the qualitative
interviews.

During the study, the research team
put in place stringent measures to ensure meaningful consultations with and
participation of rights holders, affected individuals and relevant duty
bearers; prevent and mitigate any potential harm to survivors of ERSV and all
participants involved in the study; uphold strict standards of confidentiality
and security of sensitive information obtained through the study; ensure
informed consent of all participants; and maintain impartiality, objectivity
and transparency throughout the study.

The research is part of the efforts of the United Nations in Kenya, in partnership with Government and civil society organisations, to stamp out gender based violence including sexual violence against women and girls and men and boys, and advance protection of their rights. It has been undertaken within the framework of the UN Development Assistance Framework 2018-2022 that the United Nations Country Team in Kenya developed in collaboration with the Government, and the Joint UN-Government of Kenya Programme on Prevention and Response to Gender-Based Violence (2017-2022). This research is also an initiative of the PHR Program on Sexual Violence in Conflict Zones, building on its multi-sectoral engagement with and capacity development of service providers to support meaningful access to justice for survivors.

The study is anchored in the human
rights obligations that bind Kenya to prevent sexual violence, afford
protection to survivors, effectively and promptly investigate and prosecute
cases of sexual violence, and provide reparations to survivors.[11]
Relevant standards are stipulated in international and regional human rights
treaties and conventions to which Kenya is a State Party, including the UN Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), UN International Covenant on
Civil and Political Rights (ICCPR), UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT), UN
International Covenant on Economic, Social and Cultural Rights (ICESCR), African Charter on Human and
People’s Rights (ACHPR), and the Protocol to the African Charter on Human and
People’s Rights on the Rights of Women in Africa (Maputo Protocol). CEDAW,
ICCPR, CAT, ICESCR and ACHPR
have developed practical guidance
on ‘how’ states are expected to effectively prevent, protect, investigate and
prosecute sexual violence and provide reparations to survivors of sexual
violence.[12] These have been used to
measure actions taken by the Government of Kenya during the 2017 election
period and discuss findings in the report.

The
Constitution of Kenya 2010 has a robust Bill of Rights that safeguards every
person’s right not be subjected to ‘any form of violence’ from either public or
private sources,[13] as an
enforceable right with remedies.[14]
It explicitly prohibits discrimination on any grounds, including sex,
ethnicity, age and social origin.[15]
The Constitution also provides for the right to health, which requires timely,
affordable, non-discriminatory access to quality medical assistance for
survivors. The right to health includes the collection and management of
forensic evidence with the aim of prosecuting cases of sexual violence and
providing effective remedies to survivors. Article 38 of the Constitution, read
together with Article 81(e), safeguards everyone’s right to exercise their
political rights, either as voters or candidates in free and fair elections
devoid of violence.

According to the Constitution,
international and regional human rights treaties and conventions ratified by
Kenya are part of Kenyan law.[16]
Under international human rights law, Kenya must adopt and implement necessary
legislative, regulatory, institutional and all appropriate measures to prevent,
protect, conduct effective and timely investigations, prosecute acts of sexual
violence and provide adequate remedies and reparations to survivors of sexual
violence,[17]
including in elections, committed by State and non-state actors. This obligation is of immediate nature and is
to be pursued by all appropriate measures without delay. [18]

Kenya
is also bound to adhere to the principles of non-discrimination and ‘do no
harm’. The principle of non-discrimination denotes that the rights of survivors
must be guaranteed irrespective of their ethnicity, political opinions, health,
age, disability, culture and marital status.[19]
The principle of ‘do no harm’ denotes that measures undertaken must give
priority to the well-being and security of survivors and witnesses of sexual
violence and minimise the negative impact of actions to combat sexual violence
and its consequences.[20]

Kenya’s human rights obligations continue to
apply during periods of unrest or conflict.[21]
In fact, electoral periods, which in Kenya are
often marred by violence and repeated patterns of sexual violence, require a
deliberate effort to implement State obligations with regard to ERSV.

III. Findings of the Study

The findings
and recommendations of the study are structured around four areas of State
obligations: prevention; protection; investigation, prosecution and ensuring
accountability; and access to remedies and reparations.

State Obligations to Prevent ERSV

The State is obliged by human rights treaties and conventions to undertake steps to prevent sexual violence.[22] Specifically, the Government of Kenya is obliged to prevent ERSV through:

Taking all appropriate measures to
prevent acts of sexual violence the authorities are aware of, or to address the
risk of violence;

Establishing a system to regularly
collect, analyse and publish data disaggregated by type of violence, so as to
further develop preventative measures;

Developing and implementing
awareness-raising programmes with relevant stakeholders countrywide; and

Providing mandatory, recurrent and
effective capacity-building and training for law enforcement officers to equip
them to adequately prevent and address violence.

The study established that Government
was hampered in fulfilment of its obligation to prevent ERSV due to: 1) lack of anticipation and planning for the risk
of ERSV; 2) inadequate
coordination
and monitoring in implementation
of
contingency planning; 3) failure
to develop and implement survivor-centred, comprehensive and coordinated awareness-raising
programmes countrywide; and 4) lack of mandatory, recurrent and effective
capacity-building and training for law enforcement officers.

The Government must implement
preventive measures with a survivor-centred approach, and design and implement
the measures with the participation of women. The Government is also under a
duty to allocate appropriate human and financial resources to effectively
implement laws and policies for the prevention of sexual violence. The failure
of the State to undertake appropriate measures to prevent acts of sexual and
gender-based violence (SGBV), including ERSV, in cases where it is aware or
should be aware of the risk of such violence provides tacit permission or
encouragement to perpetrate such acts of violence.[23]

Lack of anticipation and planning for the risk of ERSV

The
State is mandated to allocate appropriate human and financial resources to
effectively implement laws and policies for the prevention of SGBV, including
ERSV.[24]
Despite patterns of sexual violence in
virtually every Kenyan election since the 1990’s, there was a lack of
anticipation and planning for the risk of ERSV in 2017 by electoral actors, and
resource and capacity gaps in this regard.

The Independent Electoral Boundaries
Commission (IEBC), in line with its Strategic Plan (2015-2022) and its
Elections Operations Plan (2015-2017), one year ahead of the 2017 elections established a formal partnership
with the NPS under its Electoral Security Arrangement Plan (ESAP) to ‘promote
and ensure security of campaign periods’ and conduct a ‘joint election risk
assessment and response’.[25] However, IEBC’s Strategic
Plan and Elections Operations Plan focused on the risks of general violence and
did not integrate an assessment of the risk of ERSV. Consequently, the ESAP did
not explicitly include a risk assessment of ERSV, and rather focused on
the security of electoral materials and candidates, and on tackling the risk of
general violence during the election.[26]
The IEBC respondents interviewed
indicated that they did not have specialized technical gender capacity to
undertake thorough contextual analysis and hot spot mapping that would identify possible triggers and ERSV
risks against electoral timelines, noting that each phase of the electoral
process carries different risks.

The IEBC has a duty to ensure adherence
to codes of conduct by political parties, their candidates and members during
the electoral period and to take steps to prevent violence and respect human
rights.[27]
In 2017, IEBC developed a Code of
Conduct for nominations by political parties as provided in the Elections
(Party Primaries and Party Lists) Regulations 2017. This code, together with
three other Codes of Conduct provided in the IEBC Act, the Elections
Act and the Political Parties Act, all proscribe violence,
harassment and intimidation by candidates and political parties.[28]IEBC established a partnership with the Office of the
Director of Public Prosecution (ODPP) to monitor compliance with these codes of
conduct. However, due to inadequate resources, the partnership was only
operationalised on the day of elections and focused on monitoring at polling
stations. It excluded the key phase of the primary elections in April 2017,
during which a large number of women candidates experienced verbal and physical
attacks, and threats of sexual violence. Women candidates interviewed by the
research team observed that threats of sexual violence and sexual assault
directed at women during the electoral period often escalate to ERSV and called
for such threats and assaults to be prevented and addressed. A woman candidate
during the 2017 general elections aptly stated, ’I did not see IEBC monitors
or any monitors. As a candidate, I was sexually harassed as my breasts were
touched on several occasions during campaigns. Sexual violence escalates from
such forms of sexual assault…’.

Political parties have a duty to ensure
adherence to codes of conduct, to respect human rights and to publicly condemn,
avoid, refrain from, and take steps to prevent violence.[29]
Political parties did not establish effective internal dispute resolution mechanisms for receiving
complaints of threats and ERSV, and for enforcing compliance with the Political Parties Act code of conduct.
Interviewed women candidates indicated their political parties’ dispute
resolution mechanisms had high thresholds for evidence, requiring corroboration
to address threats of violence, including ERSV, and, as a result, their
cases were largely unaddressed. A woman respondent, who was a political party
agent during the 2017 general elections, told the research team that she
received several threats of sexual violence for being an agent for ‘the wrong
political party’ and informed her political party of these threats but did not
receive any assistance, although the provision of security is stipulated under
the codes of conduct. After a series of such threats, she was raped.

State
security officers were deployed countrywide as part of security planning.
However, the officers did not receive specific pre-deployment briefings on
how to deal with risks of and respond to ERSV. The
2017
general elections saw a massive deploymentof 180,000 officers drawn
from the NPS, as well as special police officers deployed as reinforcement from
the Kenya Prisons Service, Kenya Wildlife Service, Kenya Forest Services and
National Youth Service. NPS general security planning focused on ‘crime prevention
and response during electoral period’. NPS respondents noted this would be
enough to prepare for risks of sexual violence. Some security officer
respondents said, ‘in cases where sexual violence is perpetrated during
riots, police contain riots to ensure sexual violence cases are not escalated,
as a mitigation measure.’ Senior NPS respondents observed that it was not
possible to know where and when ERSV would take place since ERSV is a ‘private
crime’, and it did not warrant any kind of specialized mechanisms beyond the
general crime mapping. As discussed in the next section on protection, due to
this gap in planning for the risk of ERSV, safe corridors were not put in place
during periods of containment to enable survivors to seek safety and medical
assistance.

Inadequate coordination and monitoring in implementation of contingency planning and absence of ERSV data collection system

The State must, when undertaking
appropriate measures to prevent sexual violence, coordinate with relevant
actors and undertake regular monitoring so as to enhance the prevention of such
violence.[30] The
Government is called upon to ensure civil society organisations, including
community organisations, directly participate in an ongoing manner in
prevention activities and in all stages of the development, implementation and
monitoring of action plans.[31]

A
National Contingency Plan for the 2017 general elections was developed by the
National Disaster Operations Centre, located in the Ministry of Interior and
Coordination of National Government. The plan was developed in collaboration
with key Ministries, State, non-state, development and humanitarian actors. It
was premised on lessons learned from the 2007/2008 post-election violence.[32] The
planning process commenced in August 2016, one year before the elections, and
was intended to cover the pre-election to post-election period from March to
November 2017. The National Contingency Plan acknowledged sexual violence as
one of the gaps and challenges to prioritize for preparedness and response,[33] and
consisted of four inter-related pillars: early warning and prevention; security
and safety; humanitarian assistance; and mass casualty incidents. Key
actors working in these four sectors were required to develop specific
preparedness and response plans to be annexed to the National Contingency Plan.

However, despite the
prioritization of addressing sexual violence, there were challenges and gaps in
implementation:

Sexual violence was unevenly
prioritised in the implementation of the National Contingency Plan (see details in following
section on protection);

Implementation
of the plans was undermined by funding delays, as close as three to four weeks
prior to elections (see details in following section);

Due to weak coordination between
election observers, such as Uwiano Platform for Peace, and other actors,
such as KNCHR and civil society organisations, documented information on risks
and actual patterns of ERSV was not integrated in early warning, prevention
and contingency plans under the IEBC Inter-Agency Coordination Committee composed of relevant line
ministries for information sharing on election security risks.

KNCHR
did not receive earmarked Government funding to enable it carry out countrywide
human monitoring during the 2017 elections period but was able to deploy over 100 human rights
monitors with financial support from development partners. Whilst NGEC and KNCHR
both deployed monitors, they did not coordinate monitoring throughout the
electoral period, to exercise their complementary roles as stipulated in the
Constitution and in their constitutive Acts.[34] NGEC deployed monitors to
implement a tool on the political participation of marginalised groups, but its
monitors (two in each of the 47 counties) were not utilised to monitor ERSV.

The State is required to establish a
system to regularly collect, analyse and publish data categorized by type of
violence so as to further develop preventative measures.[35]
The NPS indicated to the research team, however, that while police
stations gather data on
age, gender and types of gender-based violence, the data is only processed
annually for statistical purposes. Thus, data collected during the electoral
period was not analysed in real time so as to enhance election contingency
plans and early warning systems for the prevention of ERSV.

The State is obliged by human rights
treaties and conventions to develop and implement awareness-raising programmes
targeting women and men at all levels of society to prevent sexual violence.
Such programmes should provide information on relevant laws, encourage
reporting of sexual violence, and provide information on mechanisms available
to report acts of violence and measures to protect, assist and support victims.[36]

The study found failure to develop and
implement survivor-centred, comprehensive and coordinated awareness-raising
programmes countrywide. The study established that while awareness-raising
activities were conducted by State actors prior to the election period,
activities were:

Uncoordinated, resulting in
duplication;

Not carried out countrywide due to
limited resources. Respondents from Government and civil society organisations indicated
that their selection of target counties was often based on availability of
staff in those counties due to resources constraints. Awareness-raising
initiatives were reported to be minimal in Bungoma and Vihiga counties, which
saw high prevalence of sexual violence in the 2017 elections;

Neither standardised nor comprehensive,
and were disseminated late, at times two to three weeks prior to the general
elections, due to delayed receipt of donor funding. As discussed in detail in
the following sections, awareness-raising materials lacked practical
information on several key aspects, such as how to preserve evidence and report
cases to the NPS Internal Affairs Unit and IPOA.

Lack of mandatory, recurrent and effective capacity-building and training for law enforcement officers

The State is required to provide
mandatory, recurrent and effective capacity-building and training for law
enforcement officers to equip them to adequately prevent and address sexual
violence. Training should focus on different types of sexual violence and on
how to detect and prevent them, and should centre on the rights and needs of
survivors.[37]

The study found failure to provide
mandatory, recurrent and effective capacity building and training for law
enforcement officers. The study established that the Government had instituted
efforts to conduct training for law enforcement agencies, but these had
challenges and gaps:

Trainings conducted for the NPS and
security officers drawn as reinforcements from other services largely focused
on preparing security personnel in case of riots or demonstrations, and
criminal investigation of election offences such as voter bribery, but did not
provide operational guidance on their role to prevent and respond to sexual
violence;

The NPS does not provide training to
police officers on how to proactively detect risks for sexual violence, enhance
protection during outbreaks of violence or perform other tasks such as
escorting survivors to safe places. Police P officers who were interviewed
confirmed that their standard basic training focuses on ‘investigation’ and
sexual violence is largely treated as any other crime. There are no specific
instructions on how to prevent re-traumatisation or management of forensic
evidence in the chain of custody during unrest or in the context of late
reporting by survivors;

The NPS Standing Orders, which contain
elaborate provisions on how police officers should receive and act on
complaints from survivors of sexual violence, were finalised in July 2017 and
therefore were not reflected in training provided before the August 2017
elections;[38]

Police respondents indicated that
between electoral cycles a number of police officers receive ad hoc specialised
training on sexual violence by civil society organisations and UN agencies.
However, the content of training is not harmonized, police are not sufficiently
consulted to ensure training addresses NPS training needs assessments, and
there is no database of police officers who have received specialised training
so as to specifically assign them to gender desks in police units.

Good practice: In February 2019, the NPS launched its ‘Standard Operating Procedures on GBV Prevention and Response’ that aims at ‘in-service training for serving police officers and new recruits as a stand-alone program, in all County Police Training Centres and Regional Training Centres’ and ‘establish a database of officers trained in GBV preventive and responsive policing’.

State Obligations to Protect

The State is obliged by human rights treaties and conventions to provide timely, accessible, affordable, adequate, appropriate and efficient measures to protect survivors and individuals at risk for new acts and consequences of sexual violence.[39] Under these treaties and conventions, the Kenyan government is obliged to protect individuals from ERSV through:[40]

An effective legislative, policy and
regulatory system, with adequate institutional mechanisms and budgetary
and human resources for protective measures;

Safety and security measures, such as crisis support, rescue and
referral centres, safe houses and shelters, and confidential reporting mechanisms
to protect victims and their families from stigmatisation and reprisals,
regardless of whether they have lodged a legal complaint;

Legal and socio-economic assistance to support victims and survivors in
accessing remedies for ERSV and restoring their livelihoods, including
provision of transportation, skill-building training, employment opportunities,
education, childcare and affordable housing.

The
study found that the State has established various protection measures, but the
Government was hampered in its fulfilment of its obligations to protect ERSV
survivors by: 1) delays in implementation of laws
and national policies; 2) failure to
establish safety and security measures for survivors; 3) inadequate preparation
of emergency response to ERSV; 4) failure to ensure access to affordable,
appropriate, quality and comprehensive health care services; 5) ineffective
access to information on availability of protection measures and services; and
6) lack of coordination among stakeholders in the design and
implementation of measures for protection and assistance to survivors.

The State has a duty to ensure that
protection measures are accessible to all victims and survivors of ERSV,
without discrimination on any basis, in all locations. These obligations are
applicable at all levels of Government, including within devolved county
governments. The Government must, therefore, ensure that county governments are
allocated adequate financial, human and other resources to effectively and
fully implement protection measures for victims and survivors of ERSV; the
Government must retain the authority to require compliance, coordination and
monitoring within devolved governments.[41]

Delays in implementation of laws and national policies, resulting in ineffective protection and assistance to survivors

The
Victim Protection Act No. 17 of
2014 provides for assistance and protective measures to victims of
crime, including security, rehabilitation, health, psychological and
psychosocial support, legal services, transport, childcare and other
appropriate assistance to manage physical injuries and emotional trauma,
facilitate access and participation in criminal and restorative justice
processes, obtain reparation, and deal with consequences of victimization.[42]
However, the draft Regulations required to operationalize the Act were prepared
prior to the 2017 elections, but were not finalised and gazetted.

The Government has not developed operational
frameworks to ensure effective implementation of and resource allocation for
protection measures outlined in the 2014 National
Policy on Prevention and Response to Gender-Based Violence. These measures
include safety and security, psychosocial
support, socio-economic assistance, legal aid and referral services for victims
and survivors of sexual violence.
Further, the Multi-Sectoral
Standard Operating Procedures on Prevention and Response to Sexual Violence
2013 are yet to be operationalised to institutionalise follow up and referral
mechanisms for medical, psychosocial support and protection services to
survivors; thus, referral and follow up are ad-hoc depending on
clinicians’ knowledge of other service providers. The Government has also yet
to finalise and adopt a policy on the uniform treatment of all sexual offences
envisaged under Section 46 of the Sexual
Offences Act.

Further,
the national policies on Gender-Based Violence and Health have not yet been
adopted into the laws of the four county governments where the study was
conducted, resulting in inadequate resource allocation and provision of
protective measures.

Failure to establish safety and security measures for the protection of survivors

The
State has a responsibility to create or fund safety and security measures for
survivors of sexual violence. Such measures should be accessible to all
survivors and their children or families; be provided at no cost and regardless
of whether a survivor has lodged a legal complaint; guarantee absolute safety,
privacy and confidentiality; and be sufficiently funded and staffed with
competent personnel.[43]
ERSV survivors in Bungoma told the
research team they refrained from reporting ERSV because of reprisals from
perpetrators and due to numerous, repeated and unabated threats or
attacks by well-known gangs in the area during the electoral period.

There
is no Government-established safe shelter; therefore clinicians indicated that
they referred ERSV survivors to safe shelters run by civil society
organisations, which can only offer protection for a few days and often lack
the capacity or resources to provide protection for survivors together with
their children or spouses. In some instances where emergency shelter was
available,survivors were fearful of
leaving their children behind without anyone to provide them with care, food
and security.In some cases, child
survivors were referred to borstal institutions/juvenile centres due to the
lack of alternative shelters that would be more appropriate for their
protection.

Insufficient time, resources and expertise to implement the National Contingency Plan to effectively anticipate and prepare for emergency response for survivors of ERSV

The
State has a duty to ensure adequate protection and accessibility of emergency
health care and protection services to survivors. This includes the development
and dissemination of standard operating procedures and referral pathways to
link security actors with service providers offering medical, legal,
psychological, and socio-economic assistance.[44]
The study found there was a failure to ensure adequate protection and accessibility
of emergency health care and protection services to survivors.

The
National Contingency Plan required agencies under its humanitarian pillar to
work closely with agencies under the early warning, security and health pillars
to provide safe access to affected populations and coordinate health services
in emergency situations. However:

Operationalization of the plan at the
county levels through the 8 regional hubs, County Disaster Committees and
Steering Groups commenced too close to the elections, leaving insufficient time
for effective county risk assessments, planning, adequate training, simulations
and coordination with key actors and stakeholders from regions and communities
that were likely to be affected;

Technical assistance to support
provision of protection and emergency response measures for ERSV and other
forms of SGBV was not available until September and November 2017, several
weeks after the outbreak of election-related violence following the general
election in August 2017 and fresh presidential elections in October 2017;

Greater attention was placed on
mitigating and addressing internal displacement, loss of life, serious physical
injuries and destruction of property, in comparison to sexual violence. As a
consequence, most of the responses to reported cases of ERSV were reactive and
initiated well after the violence had erupted;

The national and county contingency
plans failed to contemplate the effect of containment (the blocking of roads as
a security measure to quell violence in affected communities) on the access of
survivors of ERSV to emergency health care, safety and other protective
measures. There was no coordination between first responders, humanitarian
agencies and security actors to provide safe access into and out of affected
communities, and safety for survivors, humanitarian workers and volunteers. A
respondent described the chaotic situation, “youth
were throwing stones and police were throwing tear gas”. The heavy presence
of security personnel instilled fear within the affected communities;

The national and county governments did
not put in place effective contingency measures for health and psychological
support services for survivors of ERSV, in light of the doctors’ and nurses’
industrial strike that was ongoing during the electoral period. Jaramogi Oginga
Odinga Teaching and Referral Hospital Gender-Based Violence Recovery Center in
Kisumu County was the only one of the four public health facilities reviewed
during the research that was operational during the electoral period.

A civil society-based national toll-free helpline, 1195, which is manned 24 hours by Healthcare Assistance Kenya (HAK) provided confidential reporting support to survivors of ERSV.

However, the State did not provide it with additional personnel or resources in anticipation of ERSV cases. HAK responders were overworked some handling 36 hour shifts, lines were reported to have jammed following elections and there were no follow-up mechanism for the helpline to establish survivors received protection, medical and support services.

As
a result of these challenges in the implementation of contingency plans, 29 out
of 39 survivors who reported ERSV during the 2017 elections and who were
interviewed in Bungoma, Vihiga, Kisumu and Nairobi counties were unable to
access medical care, and two survivors contracted HIV and other STDs as a
consequence of delayed medical treatment. Three of the 39 survivors were
minors, and one conceived a child as a result of rape.

National policies, guidelines,
regulations and Standard Operating Procedures for provision of PRC health
services have yet to be fully adopted and implemented within Nairobi, Kisumu,
Vihiga and Bungoma counties as envisaged under Section 15 of the Health Act No. 21 of 2017. As a result,
there were no earmarked or sufficient resources allocated within the budgets of
county governments to ensure provision of available, accessible, appropriate
and high-quality PRC health services. County governments were heavily dependent
on grants from donors for the implementation of health policies, resulting in a
heavier focus on areas of donor interest such as maternal health and HIV.

Most health facilities do not provide
24-hour specialized, integrated and comprehensive medico-legal services.
Survivors who report after 5 p.m. are often received through the casualty ward
and only provided with emergency contraceptives, PEP kits and treatment of
serious injuries. Most survivors do not return to the facility for follow-up
treatment and psychosocial support due to lack of fare. A health professional
respondent noted ‘“The return rate for the second visit is at 80%; but by the
fifth visit the rate of follow up visits decreases to 28%. Once the survivors
complete their PEP dosage and confirm that they are not pregnant or
HIV-negative they begin to fall out.’

Good practice: The study established promising strategies for survivor-centred comprehensive medical treatment and follow-up. Nairobi Women Hospital-Gender Violence Recovery Centre reported that it has been able to improve the rate of survivors return to 90% through sustained phone calls, establishment of additional branches to enhance accessibility, and database of network of hospital, state and non-state actors countrywide for referral of survivors for follow up health care, safe shelter and legal aid.

Misconceptions that men are incapable
of being raped and stigma about being perceived as weak hindered male survivors
from reporting violations. “Adult male
survivors shy off from reporting ERSV. They are ridiculed at different service
points and by their peers. They only come forward when very severely injured,
such as a case where a man had his testicles cut off and became suicidal,”
stated a hospital administrator in Nairobi. PRC records reviewed confirmed the
effect of gender stereotypes, as the records indicated that 5% of the total
reported cases involved male survivors.

There are regular shortages or complete
lack of essential medicines, commodities and equipment for provision of PRC
services. Two of the reviewed health facilities reported that they had not had
emergency contraceptives for almost five months. Health professionals said they
lacked PRC supplies.

Respondents reported that survivors are
charged for completion of P3 Forms (police forms to be completed by medical
officers) by medical examiners in public health facilities, and in some
facilities they have to pay for laboratory services and prescribed medication
in violation of Section 35 of the Sexual Offences Act No. 3 of 2006, which
entitles survivors to receive free medical treatment from public health
facilities and gazetted private hospitals.

Survivors did not receive ongoing
psychosocial support, counselling, or peer and community support to deal with
trauma and reduce stigmatization. Health professionals reported that they were
only able to facilitate or provide survivors with counselling during HIV
testing and follow up on PEP adherence within a three-month follow-up period.

The absence of clear and standardised
policies and guidelines for provision of abortion services to survivors who
became pregnant as a result of rape presents barriers to access to timely and
non-discriminatory abortion services. In some cases, there are requirements for
pre-authorization, which contradict Article 26(4) of the Constitution. A health
care worker reported that clearance from five doctors was required to recommend
the provision of safe abortion to survivors who became pregnant from rape: “In some cases, survivors come back to the
hospital for post-abortion care after performing back street abortions”.

There are inadequate resources for
effective collection, documentation and preservation of medical forensic
evidence and chain of custody. The five health facilities assessed during the
study did not have pre-assembled and standardized rape kits. Health
professionals also reported persistent shortages in supply of the comprehensive
PRC forms used for standardized examination, collection and documentation of
medical forensic evidence. Health professionals were also reluctant to give
evidence in court proceedings following completion of PRC forms because they
often have to pay for their own transport costs.

Lack of harmonization and consistent
practice in the completion and use of medical PRC and police P3 forms present
challenges to the comprehensive documentation of medical evidence, result in
double reporting or conflicting information, and often expose survivors to
re-traumatisation when re-examined for the purpose of filling out both forms
separately.

Due to inadequate resources for
training by the Ministry of Health, there is only a small cadre of competent
clinicians available to provide post-rape care services, which is inadequate
compared to the number of reported cases of sexual violence and even more so
during emergency periods.

Public health facilities lack safe, private and
gender-sensitive facilities for examination of survivors of sexual violence. A
clinician in one facility described, “When a survivor reports through outpatient, clinical officers have to
get one of their colleagues out of the triaging room in order to have privacy
while examining the patient… sometimes, I just have to examine the patient in
my office.” Another observed
challenge within the facilities was that, at times, sexual violence cases are
referred to the Maternal Child Unit which creates a barrier to male survivors
who would fear reporting their cases in midst of women and children.

Ineffective access to information on availability of protection measures and services

The
service provider directory developed and disseminated by UN Women and its
partners, including the State Department for Gender Affairs, was only available
a few weeks prior to August 2017 due to delayed disbursement of production,
hence there was not sufficient time to test and ensure all functional service
providers at community level were included in the directory. Respondents
reported that some of the service providers’ contacts were not operational
during the electoral period.

Absence of coordination, including with community-based actors, in the design and implementation of measures for protection and assistance to survivors.

The absence of
coordination resulted in parallel,
disjointed and duplicative response efforts being conducted by different
organisations, within existing programmes run by County Technical Working
Groups, Court Users Committees and the NGEC GBV working groups. Further, the
implementation of the National Contingency Plan was heavily driven by
humanitarian and development partners, with minimal involvement of community
and non-state actors, and assumed that survivors would readily access emergency
protection and support services. Human rights defenders, who were the most
vital first responders to the majority of ERSV survivors within affected
communities, were not effectively utilised by state actors under the National
Contingency Plan.

The
study also noted promising practices whose effectiveness can be improved upon
to address challenges of insufficient resources, inadequate time for planning,
weak linkages, lack of knowledge among survivors on response and referral
mechanism, well acknowledged by the survivors’ first responders. In Nairobi,
the national network of survivors of sexual violence monitored electoral activities
and reported signs of risk of violence to the Wangu Kanja Foundation, which
collaborated with key stakeholders, including police, County commissioners,
churches, and other actors, and provided safe shelters to support access to
protective measures for survivors of sexual violence. Also in Nairobi, the
Election Observation Group (ELOG) referred cases of ERSV reported by its
monitors to the Centre for Rights Education and Awareness, a CSO, which
subsequently facilitated survivors’ access to emergency health and
psychological care, legal assistance and psychosocial support.

Kisumu had a promising
coordination the Jaramogi Oginga Odinga
Referral and Teaching Hospital and the County Technical Working Group trained
community health volunteers and actors to sensitise survivors in affected
communities on the importance of reporting and create awareness on health care
and other protection measures available through its Gender-Based Violence
Recovery Center. Through these community awareness campaigns, several survivors
were identified and eventually sought health care. In Vihiga County, a Red Cross volunteer
established base at a shop within an informal settlement that was experiencing
violence and ferried emergency contraceptives and HIV post-exposure prophylaxis
to survivors using a motorbike through the bushes.

State Obligations to Investigate, Prosecute and Ensure Accountability

The
State is obliged to take all appropriate measures to investigate, prosecute and
apply appropriate legal and disciplinary sanctions to ensure accountability for
violations of human rights, including acts constituting international crimes,
as part of the obligation to provide access to effective remedies.[45]
The obligation to prosecute and provide adequate remedy for ERSV includes:

Effective
laws, institutions and a system in place to address sexual violence committed
by State and non-state actors.[46]

Eliminate
barriers to access to justice and guarantee essential components of access to
justice for survivors of ERSV such as accessibility; effective, accountable and
gender-responsive justice institutions; and just and timely remedies.[47]

The
study established that Kenya has an overall impressive legal and institutional
framework in place to investigate, prosecute, and establish accountability for
sexual violence in Kenya, including during elections and other situations of
unrest. However, the Government was hampered in fulfilling its obligations due
to: 1) lack of specificity, linkage and
a confusing duality in the legal framework criminalising and sanctioning ERSV
in Kenya; 2) inaccessibility and unavailability of reporting and complaints
response mechanisms to ERSV survivors; 3) failure to conduct survivor-centred,
timely and properly resourced investigations; 4) ineffective coordination
between investigative agencies; 5) weak linkages with organisations working
with survivors; 6) limited specialised prosecution capacity; and 7) lack of
effective data collection throughout the criminal justice system.

To date, there have been no completed prosecutions, adjudication and convictions for cases of ERSV arising from the 2017 election period or from the 2007/2008 post-elections violence. Gaps and challenges noted relating to 2007/2008 ERSV persisted following the 2017 elections, and must be addressed urgently to ensure accountability. Accountability is an important element of prevention of future violations.

Lack of specificity, linkage and a confusing duality in the legal framework criminalising and sanctioning ERSV

The State is obliged to adopt legislation[48]
prohibiting all forms of gender-based violence against women and girls,
including by the criminalisation of sexual violence, in line with international
standards. However, under Kenya’s legal
framework:

There is no definition of ERSV, which
hampers the identification and treatment of ERSV as a unique and particular
manifestation of sexual violence requiring specific investigation and
prosecution, especially in cases of targeted, widespread or systematic sexual
violence.

The Election
Offences Act prescribes lesser penalties for sexual violence in comparison
with the Sexual Offences Act, which
is the law under which sexual violence is investigated, prosecuted and punished
in Kenya therefore creating a duality in punishing sexual violence.

The Election
Offences Act does not make any linkage with the Sexual Offences Act so as to guide the investigation and
prosecution of wide-ranging forms of sexual violence outlined under the Sexual Offences Act, which could be
perpetrated and manifest as ERSV.

Inaccessibility and unavailability to ERSV survivors of reporting and complaints response mechanisms

The State is obliged to ensure access to information
to support access to justice.[49] The
study found that Kenya has robust reporting and complaints mechanisms – such as
the Independent Policing Oversight Authority (IPOA), Police Internal Affairs
Unit[50]
(IAU) and the Witness Protection Agency[51]
(WPA) – but there were challenges and gaps in ERSV survivors accessing these
mechanisms.

Despite the documented prevalence of
ERSV in past elections, there were no specific contingency measures
established, such as an ad hoc reporting centre, to facilitate the reporting of
ERSV to police during the 2017 electoral period. The majority of ERSV survivors
interviewed indicated that police stations or patrol bases were too far from
their villages and inaccessible during the period of unrest following the initial
announcement of presidential election results.

Survivors and community members did not
have information on the existence and mandates of IPOA and IAU (a specialised
oversight unit within NPS), as special complaints mechanisms available to
investigate ERSV perpetrated by police; and on WPA as an available protective
mechanism.

Prior to the 2017 elections, 49 out of
the 53 survivors interviewed were unaware of the existence and mandate of IPOA.
Four of the 53 survivors were aware of IPOA as a result of awareness raising by
various NGOs. After the 2017 elections, 10 of 49 survivors who were unaware of
IPOA became aware of its existence after IPOA investigators approached six of
those survivors in Kisumu to follow up on the reports they had made to local police
stations regarding ERSV perpetrated by police. None of the 53 survivors
interviewed were aware of the existence and mandate of the IAU. IAU
investigators indicated to the research team they had not received any reports
from members of the public on police-perpetrated ERSV. 44 of the 53 survivors
interviewed were unaware of the existence and mandate of the WPA.

There were inadequate resources to
ensure the operational devolution of IAU to the county level, to improve their
accessibility and availability to communities. IPOA has devolved offices in
Kisumu and Kakamega counties that also cover Vihiga and Bungoma counties.
Avenues for reporting to the IPOA and/or the IAU include telephone, email, mail
and reporting at a police station, field office or the Office of the Ombudsman.[52] These
avenues are limited and inaccessible to persons who cannot afford mobile
telephone airtime or internet costs, or fare to travel to the offices far from
their locality.

ERSV survivors reported that they were
not apprised of the progress of investigations in their cases. Therefore, they
were apprehensive that they may not secure justice.

Perceived corruption within the police
and unaddressed security concerns amongst survivors’ communities also
discouraged survivors from reporting ERSV cases to the police.

The State is
obliged to ensure that investigations are prompt and expeditious;[53]
independent and impartial;[54]
transparent to allow for public scrutiny and victim participation;[55]
thorough and aimed at uncovering the facts of what happened;[56]
and capable of identifying and punishing those responsible.[57]
Victims ought to be informed of and have access to hearings and all relevant
information on the investigation.[58]
States
must also guarantee that the rules applicable to gathering and using evidence
do not discriminate against survivors of sexual violence.[59]

The study
uncovered serious gaps and challenges resulting in an inability to carry out survivor-centred,
timely and competent investigations of ERSV cases due to:

The State is obliged to establish diverse
institutional measures, which are competent and properly resourced, to enforce
laws combating sexual violence. Measures include the establishment and adequate
funding of specialised units, which are staffed with properly trained and
specialised officers.[60]
IPOA, IAU and NPS indicated that they had not received specialised and continuous training, and
therefore lacked technical capacity, skills, competence and knowledge on
distinct forms,
types and manifestations of ERSV and the specialised investigations required. This hampered investigations of ERSV following the 2017 elections. The
study noted:

Investigators from the NPS, IPOA and the IAU placed heavy reliance on
reporting by survivors in order to initiate investigations into ERSV. This was
regardless of information being available within the public sphere on
widespread or systematic ERSV in 2017.[61]
Police respondents indicated they could not commence investigations unless a
report was filed, as it would amount to “actively engineering reports”. This
approach did not take into consideration that the NPS, IPOA and IAU can
initiate investigations on their own motion.[62]

In 2018, IPOA proactively visited a number of 2017 ERSV survivors in Kisumu to record their complaints after the survivors filed complaints with different police stations in Kisumu. However, the survivors indicated that since then, IPOA has not shared any feedback.

Similarly, upon receiving instructions from the Inspector General, the NPS Internal Affairs Unit conducted a visit to Kisumu in 2018, drawing on the findings of civil society organisations on ERSV perpetrated by police in 2017, namely Human Rights Watch and the Wangu Kanja Foundation. This resulted in an internal report that recommended further investigations by the Directorate of Criminal Investigations and IPOA.

A section of
police officers interviewed were unaware of protective and other support
measures which are in place for the benefit of ERSV survivors. Nine of the 44 police officers interviewed were unaware of
protective mechanisms such as the Witness
Protection Act[63] for
the benefit of victims of crime, including survivors of ERSV. Twenty of the 44 police officers interviewed, even though
aware of the WPA, were unaware of the procedure to invoke its mandate towards
supporting investigation and prosecution of ERSV cases.

Some survivors
reported having been treated by police officers in an insensitive manner.
Survivors were asked distressing and shame-inducing questions by
multiple investigating officials and were not allowed to lodge complaints when
they could not identify perpetrators. In other cases, they were sent away from
police stations once they stated they were reporting cases of ERSV involving
police.

Contrary to the
provisions of the ‘Police Manual’ requiring investigations of crimes regardless
of where a report is made or originates, police officers indicated they would
only take up investigation of sexual violence that occurred within their own
jurisdiction. This does not take into account that survivors – for security or
economic reasons – may need to report to their nearest police station, which is
not necessarily in the area where the crime occurred.

There was a lack of understanding within
the investigative agencies that investigations should proceed even if the
perpetrator’s identity is unknown. Police indicated such cases are marked
pending under investigations, with no movement, unless survivors provide
further evidence.

There
was lack of knowledge on the specificities of sexual violence occurring during
conflict or periods of unrest, including its types, trends, patterns, and the
prevailing context within which ERSV occurs. The knowledge is essential for:

Conducting thorough and targeted
investigations into ERSV and pursuing criminal accountability for commanders
under whose command ERSV allegedly occurred within a certain
area or locality, when the identity of individual
police perpetrators cannot be established.
Members of IPOA and IAU who were interviewed stated that in cases where the
identity of alleged perpetrators was not known, and where additional evidence
had not been availed by the survivor to assist in the identification of the
alleged police perpetrators, they were unlikely to pursue investigations owing
to the difficulties anticipated in identifying the perpetrators, since Kenya
does not have DNA or fingerprint databases.

Not placing
the burden of investigations on survivors and requiring them to provide corroborating evidence.
Survivors reported
that where forensic medical evidence was unavailable, police officers required
them to secure corroborating evidence, such as identifying witnesses and
bringing them to police stations for the investigations to proceed.

Appreciating the physical, mental or
socio-economic challenges faced by survivors in reporting ERSV cases within a
period during which forensic evidence may be collected.

Being cognisant that in situations of unrest, sexual violence may
have similar patterns. IAU seemed to lack appreciation that sexual violence
during situations of unrest may manifest in similar patterns: some of their
investigators questioned the credibility of survivors’ accounts because of
these similarities.

Interviewees from the three investigative agencies noted that unaddressed mental health concerns and psychological welfare of investigators working in the investigating agencies affects their ability and capacity to conduct prompt and thorough investigations into ERSV. It is compounded by inadequate training on how to handle the effects of ERSV, and absence of mandatory and regular debriefings. Police interviewees added that the poor socio-economic, living and working conditions of police officers affects their ability, willingness and commitment to undertake prompt, independent, transparent and thorough investigations that are capable of uncovering the facts of what happened, and identifying and punishing those responsible.

Respondents from investigative agencies indicated they contend with
barriers in conducting effective investigations of police-perpetrated ERSV due
to:

Absence of effective systems and procedures to handle cases of police officers who fail to or are unwilling to investigate their colleagues owing to comradery amongst police officers.

Lack of transparency and information on the deployment of police officers, including reinforcements, during the elections, which hampered the identification of alleged direct police perpetrators and the conduct of investigations. The massive deployment of security officers prior to and during the 2017 election period was largely executed without information being provided to communities,[64] therefore posing challenges in pursuing accountability for police-perpetrated ERSV. Survivors from Kisumu, Vihiga and Nairobi Counties observed that ‘there was a change of guard of police officers who had been working in our areas within a short period before the general elections. New police officers who were not known by communities were brought in.’ In stark positive contrast, it was observed that the police commanders in Homabay County held community dialogues and introduced newly deployed officers to the communities.

Failure to address existing structural resource and capacity gaps to conduct prompt, thorough and effective investigations of sexual violence during non-election years

Lack of adequate
financial, human and physical resources to investigative agencies to facilitate
the conduct of prompt, thorough and effective investigations of sexual violence
during non-elections exacerbated the obstacles of conducting investigations of
ERSV. These include:

Lack of gender desks or specialised units to handle cases of sexual
violence at all police stations. Where available, the gender desks or offices
are not always or regularly staffed with police officers who have received
specialised training on handling sexual violence cases, including how to
undertake effective investigations of ERSV cases.

Unavailability
of Occurrence Books
(OBs), a mandatory tool used by the police to record all incidents of crimes,
and mandatory P3 forms used by police officers to request medical examinations
of survivors and perpetrators (if available) so as to document medical
evidence. Survivors reported being asked for payment to make photocopies of the
P3 form, or to download the form from the internet themselves.

Lack of knowledge
amongst police officers that medical PRC forms can be used in lieu of the
police P3 form. The NPS Service Standing Order stipulates that the use of PRC
forms suffices in sexual violence cases, but the Police Manual does not reflect
this.

Absence
of designated physical spaces to safeguard the privacy and dignity of survivors of ERSV filing
reports at police stations.

Lack of facilities and infrastructure for proper evidence storage,
leading to the loss or adulteration of evidence in support of reported ERSV
cases. IPOA, IAU and
the Government Chemist reported cases of improper management of forensic
evidence collected by police officers in ERSV cases due to improper storage and
handling of exhibits.

Lack of support within police stations to provide financial assistance to
ERSV survivors to travel to and attend health institutions for the
documentation of sexual violence or return for follow up.

Negative
attitudes, prejudices and stereotypes on ERSV by police officers. Police
officers indicated that sexual violence is not treated as a ‘top-priority
crime’, as opposed to crimes such as murder.

Weak coordination and cooperation among investigative agencies

The
State is obliged to encourage cooperation and coordination amongst all levels
and branches of the justice system, including investigative agencies, in order
to improve access to justice for victims of ERSV.[65]
Coordination and cooperation across investigative agencies were less than
optimal due to misconceptions and a lack of understanding of each agency’s
mandate to conduct investigations. Some police officers perceived IPOA as
‘against the Police’ and felt that their investigations were not impartial.
This affects the officers’ will to collaborate with IPOA on investigations,
including investigations of ERSV.

Further, there was no mechanism to formalise effective coordination
between investigative agencies and oversight bodies with investigative
mandates,[66]
such as KNCHR, which has a good reach within communities, is a crucial source of
information and is mandated to ‘refer and report cases to relevant agencies for
further follow-up’.

Weak linkages and inadequate cooperation with organisations working with survivors

The
State must work together with survivors of sexual violence and organisations
that work to support survivors, in order to properly consider their views and
expertise, as well as access relevant information to improve access to justice
for survivors.[67]

The study found a widespread perception within the
Police, including the IAU, that NGOs are ‘against the NPS’, hence unwilling to
cooperate with the Police. The three investigative agencies expressed
frustration that non-state actors, such as civil society organisations and
humanitarian agencies, were unwilling to share information which would assist
in the conduct of their investigations, but did not appreciate the application
of principles of confidentiality and prior informed consent of ERSV survivors.

Cooperation between investigative agencies,
especially Police, and survivors and communities is poor due to mistrust.
Survivors indicated that they do not trust the Police and stated they would be
unwilling to engage with the IAU, perceived as a branch of the Police as
opposed to being an oversight body, and with the IPOA, which they believe to be
staffed with police officers. Lack of transparency with local communities
regarding the deployment of police officers during the 2017 election period
also strained relations between the Police and communities, fuelling mistrust
and affecting willingness to cooperate with investigators following up on cases
that resulted from the violence.

Need for strengthened prosecution capacity

The State is
obliged to prosecute cases of ERSV, to ensure accountability for violations and
abuses, and provide effective remedies. The study found that there was
insufficient capacity and resources within ODPP and the Judiciary, in
particular:

Limited
specialised technical capacity within ODPP, including availability of mandatory
specialised training on how to prosecute and undertake prosecution-led
investigations on ERSV;

Inadequate human and financial
resources within ODPP to prosecute ERSV. There is only one specialised SGBV
unit in Nairobi, with none at the county level;

Lack of a specialised division within
the Judiciary to hear and determine cases on sexual violence, including ERSV;

Lack of specialised mandatory capacity
building on ERSV for the Judiciary;

Inordinate delays of more than 8 years
in the Judiciary completing hearings and delivering judgements in constitutional cases filed by ERSV
survivors from 2007/2008,[68]
seeking accountability for violations and reparations for harm suffered.

Lack of effective data collection, monitoring, evaluation and oversight to track progress of cases through the criminal justice system

The
State is obliged to establish a system to regularly collect, analyse and
publish statistical data on SGBV, including ERSV. This should include data on the
number of complaints received; the rates of dismissal and withdrawal of
complaints; prosecution and conviction rates; time taken for disposal of cases;
sentences imposed; and compensation/reparations provided to survivors. The
analysis of data collected should enable the identification of protection
failures (including in investigations and prosecutions) and improve and further
develop prevention and response measures to ERSV.[69]
This obligation requires that all State agencies operating within justice process
establish well-conceived, operated and coordinated data collection systems.

The study
established that although NPS, IPOA, ODPP, NGEC and the Judiciary collect data
on sexual violence cases, this is inadequate because:

The various data collection systems are not
harmonised nor linked, and do not collect uniform data. Therefore, Kenya has no system in place to track the progress of sexual violence cases
throughout the criminal justice system from the point of entry into the system
to the conclusion.

The data
collection systems of NPS, IPOA, ODPP and Judiciary do not disaggregate data on
type of ERSV cases and perpetrators.

The
Judiciary’s data on sexual violence is recorded in its
‘Sexual Offences Case Register’ that only documents cases that led to conviction,
as opposed to all cases which are heard and determined by the courts of law.

Data collected by
the ODPP, IPOA and IAU is not regularly published or readily available for
review by external parties, including survivors, civil society and other
Government offices, so as to inform planning for prevention and response
initiatives prior to elections.

Although IPOA
publishes statistics on sexual violence cases received, disaggregated data on
locations and perpetrators is only available upon written request.

State
actors in the criminal justice system are supposed to provide data on SGBV
cases to NGEC’s centralised, integrated data collection and information
management system, the Sexual and Gender-Based Violence Information System
(SGBVIS).[70]
However the system is not up to date because criminal justice actors provide
irregular and incomplete updates.

State Obligations to Provide Remedies and Reparations

As part of the
obligation to provide access to justice, including adequate,
effective, prompt and appropriate redress and remedies, the State is under an
obligation to provide reparations for SGBV, including when such acts constitute
international crimes.[71]
This relates to SGBV when committed by state actors, as well as omissions and
failure to prevent, protect and provide access to justice on the part of public
authorities. In the absence of reparations, the obligation to provide an
appropriate remedy is not discharged.[72]
Under international human rights law and standards, the State must ensure that
reparations are adequate, proportional to the gravity of the
human rights violations and harm suffered, comprehensive, holistic, effective,
timely, promptly attributed, transformative, complementary, inclusive and
participatory.[73]

The study established that while Kenya has initiated
efforts to provide reparations, the following gaps remain glaring:

The Government is
yet to specifically acknowledge the violations suffered by survivors, the State
responsibility in relation to these violations, and the burden and plight that
survivors are currently facing.
Government has not initiated yet a process of consultation with
survivors in relation to reparations.

The
draft Public Finance Management
(Reparations for Historical Injustices Fund) Regulations 2017
is yet to be adopted, and there are inadequate consultations with survivors and
civil society organisations to guide the operationalization of the Restorative
Justice Fund. In March 2015, President Uhuru Kenyatta had directed Treasury to
set up a KES 10 Billion Restorative Justice Fund (close to 10 Million US
dollars) to be utilised for restorative justice processes over a period of
three years.[74]The Fund was to be used to ‘provide a measure of
relief’ to victims of gross human rights violations, including survivors of
ERSV to repair harm and losses suffered but has never been operationalised. In
April 2019, President
Kenyatta reaffirmed his commitment to the Restorative Justice Fund but stated
that the funds would go towards “establishing symbols of hope across the
country through the construction of heritage sites and community information
centres.”[75] This declaration excludes important aspects
of comprehensive and effective individual reparations for survivors of ERSV,
including survivors that bore children of rape and male survivors.

The Government
gazetted the TJRC report, but excluded Volumes IIA and IIC, which provide lists
and details of incidents of sexual violence as gross human rights violations.
Parliament has not debated and adopted the TJRC report in full, in particular
the section dealing with sexual violence.

The Government
has failed to respond to the urgent and continuing needs and priorities of
ERSV survivors. Interviewed ERSV survivors identified the following pressing
measures for reparations: comprehensive
medical care (e.g. for eye injuries due to tear gas used in Vihiga county in
2017); psychosocial support, including for families and communities; support
for children born of rape; education for child ERSV survivors whose education were disrupted
(e.g. in Bungoma county); compensation for economic losses; and assistance to
participate in justice processes.

The comprehensive
and diverse forms of reparations to survivors of ERSV include:
restitution, compensation, rehabilitation, satisfaction and guarantees of
non-repetition[76].
Compensation should be appropriate and proportionate to the gravity of the
violation and the circumstances of each case, recognizing wide-ranging harm
faced by survivors, such as: physical or mental harm; lost opportunities,
including employment, education and social benefits; material damages and loss
of earnings; moral damage; and, costs required for legal or expert assistance,
medicine and medical services, and psychological and social services.
Rehabilitation, on the other hand, could be through the provision of adequate,
available, accessible, acceptable and quality legal, social and health
services, including medical, sexual, reproductive and mental health services
for the complete recovery of ERSV victims.

Measures
of satisfaction may include public and official acknowledgement of the
violations and of State responsibility in relation to the acts and omissions,
as well as measures to fulfil victims’ right to truth, including in relation to
ERSV, official public
apologies, symbolic measures, such as commemorations and tributes to
survivors of ERSV, as well as measures to bringing to justice perpetrators of ERSV, as well as
guarantees of non-recurrence, such as legal and institutional reforms, as well
as educational, societal and cultural interventions, among others.

III. Conclusion

Sexual
violence surrounding elections has remained a recurrent feature in Kenya’s
electoral cycles, which compounds the existing persistent crisis in society.
Concrete actions are needed to ensure accountability, address the grievances
and meet the rights needs of survivors, and put in place effective preventive
measures well ahead of the next elections in 2022. Although the Government of
Kenya has made laudable steps towards the establishment of legislative,
institutional and other measures aimed at addressing sexual violence, there
remain numerous gaps and barriers to effective prevention of and response to
ERSV that need to be urgently addressed so that ERSV does not recur in future
elections.

In
the course of this study, Government officials and institutions have
acknowledged gaps in prevention of and response to ERSV in the 2017 elections,
and proactively contributed much of the analysis and recommendations set out in
this report. The Government, together with human rights organisations, civil society
and survivors’ networks, have shown outstanding commitment towards change and
have underscored the urgency in breaking the cycle of ERSV in Kenya. It is time
to decisively act to address and prevent ERSV in Kenya. OHCHR, UN Women and
Physicians for Human Rights stand ready to work side by side with the
Government, civil society and survivors in these common efforts.

“We urge the Government to recognize our plight and take swift action to
provide us with the needed assistance and access to justice. As victims, we
have faith that the Government of Kenya will help us.”

(KB) Survivor of 2017 Election-Related Sexual Violence

IV. Recommendations

In designing and implementing measures on prevention of and response to ERSV, State actors should ensure strong linkages and cooperation with civil society organisations, women’s organisations and survivors’ networks at all levels.

Prevention

Sexual violence should be prioritized –
in policy and in practice – for security contingency planning and preparedness
ahead of the elections. (IEBC, Ministry of Interior, NPS and County
Governments, Political Parties, NGEC, KNCHR)

Electoral security preparedness and
hotspot mapping should include a dedicated risk assessment on ERSV and specific
arrangements for prevention, mitigation and response.

Early messaging from electoral and
security agencies should emphasize zero tolerance for sexual violence. (IEBC,
Ministry of Interior and NPS)

All candidates and party leaders should
be required to make a public commitment not to tolerate or condone sexual
violence. (IEBC and political parties)

Enforcement of electoral codes of
conduct should be strengthened, including by explicitly listing sexual violence
as prohibited conduct and through a formal partnership with relevant state and
non-state actors to promptly receive and act on allegations (IEBC and ORPP).

Early warning mechanisms established by
electoral and security actors should include indicators, expertise and
resources to detect and mitigate risks of sexual violence. There should be
effective linkages with other state and non-state actors involved in human
rights monitoring. Deliberate efforts should be made to proactively and
meaningfully consult and engage survivors’ networks, grassroots and
community-based organizations. (Ministry of Interior, NCIC)

In the budget cycle preceding the
elections, budget should be allocated specifically to finance the full spectrum
of measures on prevention and should be coordinated at national and county
level amongst all relevant key actors. (National Treasury, Parliament)

Resources should be allocated for
deployment of monitors by KNCHR and NGEC; establishment and implementation of
their monitoring should be coordinated. (National Treasury, Parliament)

Ensure that voter materials and other awareness-raising
tools are developed and disseminated at least one year before elections and
contain specific contents relating to ERSV, including how to detect and
mitigate risks as well as available reporting mechanisms and medico-legal
services. (IEBC, NGEC, KNCHR, NPS, IPOA)

Specialised and standardised training
should be designed and provided to security agents to underscore their roles
and responsibilities to prevent and protect persons at risk of sexual violence.
(IEBC and NPS)

Protection

Prioritise the adoption of a national policy to guide
the implementation of the Victim
Protection Act, Sexual Offences Act,
Health Act and other relevant laws,
and establish an institutional framework for data collection, monitoring,
evaluation and enhancement of measures in place for survivors of sexual
violence, including in emergency situations. (AG, SDGA, Ministry of Health,
Council of Governors)

Initiate national contingency planning for protection of communities in
ERSV hotspot areas at least one-and-a-half years before the next general
elections, to be followed by adaptation of contingency plans at County levels
at least one year before the elections. (Ministry of Interior, MOH, GOC)

Fast-track full operationalization for effective implementation of the Victim Protection Act, including through
the adoption of its Regulations. (AG)

Urgently adopt specific standards and guidelines to ensure consistency,
availability and accessibility of abortion services and related public
information to all survivors of sexual violence, including ERSV, in accordance
with Article 26(4) of the Constitution.

Review the 2013 Multi-Sectoral Standard Operating Procedures on
Prevention and Response to Sexual Violence to include effective provision of
protection and support services to survivors of ERSV and other emergencies in
conflict situations. (MOH)

Prioritize review and revision of the post-rape care (PRC) form to
enhance documentation of circumstances surrounding sexual offences, including
additional markers for description of unknown perpetrators involved in ERSV and
other conflict-related sexual violence. (MOH, Judiciary)

All county governments should prioritize the adoption, adaptation and
effective implementation of national health policies, laws, regulations and
guidelines on management of sexual violence. This includes the Reproductive
Health Policy, National Guidelines on Management of Sexual Violence, Sexual
Offences (Medical Treatment) Regulations, the National Training Curriculum and
related SOPs. (County governments)

Take deliberate steps to enhance availability and accessibility of
appropriate psychological care and psychosocial support to survivors of ERSV
and other forms of sexual violence. This includes through compulsory
competency-based training curriculums for all cadres of health care
professionals providing PRC services; development of Demographic Health
Integrated System (DHIS) to monitor mental health care needs and services
provided to ERSV survivors in accordance with Part B of the PRC form; enhancing
existing referral pathways; and provision of holistic psychosocial support
services to survivors. (County governments, national MOH, Kenya Association of
Psychologists)

Enhance data collection, monitoring, evaluation and quality control of
health care, psychosocial support, safety, and other protection and support
services offered to ERSV and other survivors of sexual violence, including:
through review of DHIS, PRC form and registers to include disaggregation on
ERSV cases and indicators related to forensic management of sexual violence
cases within the health sector; serialization of the PRC form to facilitate
tracking of cases and referrals for protection and support services within and
from the health sector to other sectors; and frequent and timely publication of
PRC service provided through County-level DHIS. (County governments, national
MOH, Kenya Association of Psychologists)

Investigation, Prosecution and Accountability

Promote legislative amendments to enhance
investigation and prosecution of ERSV, including under the Election Offences Act to proscribe ERSV
as an election offence, outlining the specific ‘elements of the crime’ with
stiff penalties and formally linking it to the Sexual Offences Act. (Parliament)

Amend
the Active Case Management of Criminal Cases in Magistrate’s Courts and the
High Court of Kenya, and the 2014 Sexual Offences Rules of Court, to require
that all sexual violence cases be expedited. (Judiciary)

Establish contingency measures to ensure timely
access to justice such as ad hoc,
secure reporting centres staffed with Police Officers and officers from IPOA
and IAU, within communities. (NPS, IPOA)

Strengthen capacity and skills for effective
investigation, prosecution and adjudication of ERSV cases including through mandatory,
specialised and continuous competency-based training so they handle cases in a survivor-centred and trauma-informed
manner so as to secure accountability. (IPOA, IAU, NPS, ODPP, Judiciary)

Strengthen training, support and resilience
strategies to mitigate vicarious trauma and reduce burn-out experienced by
investigators and service providers. (NPS, IPOA, IAU)

Enhance accountability for police-perpetrated ERSV
by including amendments into NPS Service Standing Orders to require that all
deployment notices and records contain comprehensive identifying information of
all police officers deployed into an area. (NPS)

Enhance coordination between investigative agencies,
and as well between investigative agencies and oversight agencies, to enhance
effective conduct of investigations and well as with other actors to improve
accountability for ERSV. (IPOA, IAU, NPS)

The
Police should make a concerted effort towards improving its relationship with
the public, including through progress on community policing.(NPS)

Consider establishing the Office of the Special
Rapporteur on Sexual Violence with enforcement powers, as envisaged in the TJRC
report, to enhance data collection, monitoring, evaluation and oversight of
justice processes. (National Government)

Streamline the use of medical evidence in ERSV cases
by amending and harmonising all relevant documents. These include NPS SSO
(2017), the Police Manual, 2019 NPS SOPs on GBV,[77]
and SOA Medical Treatment Regulations. In particular, documents should be
amended to accurately reflect that a PRC form can be completed by a registered
nurse, clinical officer or medical practitioner,[78]
and P3 and PRC forms are not be a pre-condition to the initiation of
investigations in sexual violence cases. (NPS, AG)

Reparations

The Government
should specifically acknowledge the violations of the rights of survivors of
electoral-related sexual violence and commit to a process of consultations with
survivors and civil society, including women and human rights organisations by providing
support to survivors, in view to inform the design and implementation of
reparations measures and programmes. (Office of the President)

The
draft Public Finance Management
(Reparations for Historical Injustices Fund) Regulations 2017
should be adopted to guide the operationalization of the Restorative Justice
Fund. (National Government-Treasury, AG)

Public official
clarifications should be provided on the partial gazettement of the TJRC report,
which excluded Volumes IIA and IIC that provide lists and details of incidents
of gross human rights violations. Parliamentary debate and adoption of the TJRC
report should not be further delayed. (Speaker of Parliament)

Design,
adopt and implement a comprehensive reparation policy and framework, with
specific focus on urgent provision of reparations to ERSV survivors. These should
entail a broad range of measures that include: comprehensive mapping of ERSV
survivors and consultation with the survivors to document their harms and
identify their needs, provision of financial compensation, public and official
acknowledgement of State responsibility in the violations and harm, measures of
rehabilitation, including medical and psychosocial support, symbolic measures
including memorialisation, educational and cultural interventions, as well as
legal and institutional reforms adopted as guarantees of non-recurrence. (AG)

[2] See,
for example, the report of the ‘Judicial Commission of Inquiry into Tribal Clashes
in Kenya’ in respect of 1992 elections, and volume 11A of the final report of
the Truth Justice and Reconciliation Commission (2013) which covered the period
from 1963 to 2008.

[3] Final
report of the Commission of Inquiry into
the Post-Election Violence (2008), pp 237-268.

[4] KNCHR, Silhouettes
of Brutality: An Account of Sexual Violence During and After the 2017 General
Elections (2018).

[10] A detailed outline of the methodologies used is available at [insert
hyperlink to PHR website]. Purposive and snowballing methodology
was utilised for qualitative key informant interviews and focus group
discussions. Five health facilities were purposively selected following
indication by interviewed survivors that they had sought PRC treatments there.

[11]
CEDAW/ C/2010/47/GC.28, under Article 2 of CEDAW; and Principle 6 and Guidelines on Combating Sexual
Violence and its Consequences in Africa (Niamey Guidelines) p.
18.

[45] CEDAW/C/GC/30, para.
38 (b). Also
see the UN Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law, Resolution adopted
by the General Assembly on 16 December 2005, 21 March 2006, A/RES/60/147,
paras. 3 and 4( UN Reparations Principles).

[64] Kenya
Gazette Notice (Vol. CXIX—No. 101, 21 July 2017) did not specify the area of
deployment, the commanding officer or any chain of command, thereby making it
exceedingly difficult to trace the various special police officers deployed. It
is difficult to obtain information at local police stations on the identity of
the various officers deployed in a particular area, since a majority have only
been deployed for the specific purpose of the election.